USA v. Misher

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51105 Dismissed as Frivolous] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/09/2010; denying motion to appoint counsel filed by Appellant Mr. Anthony Lamone Misher [6419735-2]; denying motion to proceed IFP filed by Appellant Mr. Anthony Lamone Misher [6207408-2] [08-51105]

USA v. Misher

Case: 08-51105 Document: 00511298767 Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-51105 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. A N T H O N Y LAMONE MISHER, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:93-CR-96-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A n t h o n y Lamone Misher, federal prisoner # 60747-080, seeks leave to p r o c e e d in forma pauperis (IFP) on appeal from the district court's denial of his m o t io n to reduce his sentence based on recent amendments to the Sentencing G u id e lin e s for crack cocaine offenses. See 18 U.S.C. § 3582(c)(2). A jury

c o n v ic t e d Misher of conspiracy to possess with intent to distribute cocaine; he is s e r v in g 360 months of imprisonment. Misher argues that crack cocaine, in a d d it io n to powder cocaine, was used to determine his base offense level, and
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 08-51105 Document: 00511298767 Page: 2 Date Filed: 11/18/2010 No. 08-51105 t h e r e fo r e the district court erred in its determination that the crack cocaine a m e n d m e n t s were inapplicable in his case. Misher also challenges the district c o u r t's reliance on pre-incarceration conduct to deny his Section 3582(c)(2) m o t io n . Misher has filed a motion for the appointment of counsel. B y moving to proceed IFP, Misher is challenging the district court's c e r t ific a t io n decision that his appeal was not taken in good faith because it is fr iv o lo u s . See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). "An

in v e s t ig a t io n into the [IFP] movant's objective good faith, while necessitating a b r ie f inquiry into the merits of an appeal, does not require that probable success b e shown." Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this c o u r t's inquiry into an appellant's good faith "is limited to whether the appeal in v o lv e s legal points arguable on their merits (and therefore not frivolous)." Id. (in t e r n a l quotation marks and citation omitted) T h is court reviews the district court's "decision whether to reduce a s e n te n c e under Section 3582(c)(2) for abuse of discretion," while its in t e r p r e t a t io n of the Guidelines is reviewed de novo and its findings of fact are r e v ie w e d for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2 0 0 9 ) (citations omitted), cert. denied, 130 S. Ct. 3462 (2010). "A district court a b u s e s its discretion if it bases its decision on an error of law or a clearly e r r o n e o u s assessment of the evidence." United States v. Smith, 417 F.3d 483, 4 8 6 -8 7 (5th Cir. 2005) (quotation marks and citations omitted). A n y error in the district court's application of the Guidelines amendments t o Misher does not warrant reversal. The district court stated in its denial of M is h e r 's Section 3582(c)(2) motion that "[e]ven if the Court were to determine t h a t the amendments applied to Defendant, the Court would exercise its d is c r e t io n to not grant a reduction in this case due to Defendant's violent c r im in a l background." This language clearly indicates that the district court's d e n ia l of Misher's motion did not result from any purported error in the district c o u r t's application of the crack cocaine amendments to the Guidelines. See, e.g., 2

Case: 08-51105 Document: 00511298767 Page: 3 Date Filed: 11/18/2010 No. 08-51105 U n ite d States v. Bonilla, 524 F.3d 647, 656-57 (5th Cir. 2008) (holding, in direct c r im in a l appeal, that procedural error did not require vacating sentence where t h e sentence imposed did not result from the Guidelines error). Furthermore, Misher presents no meaningful argument that suggests that h is post-sentencing conduct contradicts the district court's determination that h e is a public safety risk. The record shows that the district court gave due c o n s id e r a t io n to Misher's motion and considered the factors set forth in 18 U .S .C . § 3553(a) in its determination that Misher's early release would clearly c o n stitu t e a danger to the community. The district court's decision therefore was n o t an abuse of discretion. See Dillon v. United States, 130 S. Ct. 2683, 2691 (2 0 1 0 ); Evans, 587 F.3d at 673; U.S. Sentencing Guidelines Manual § 1B1.10, c m t . n.1(B)(i)-(iii) (2008). M is h e r has failed to demonstrate that his appeal involves non-frivolous le g a l issues. See Howard, 707 F.2d at 220. Accordingly, his IFP motion is D E N I E D . Because the appeal is frivolous, it is DISMISSED. See 5th Cir. R. 4 2 .2 . Misher's motion for the appointment of counsel is DENIED. See United S ta te s v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).

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